United States Court of Appeals

For the First Circuit

No. 06-1152

UNITED STATES OF AMERICA,

Appellee,

v.

JACKSON NASCIMENTO,

Defendant, Appellant.

_______________

No. 06-1153

UNITED STATES OF AMERICA,

Appellee,

v.

LANCE TALBERT,

Defendant, Appellant.

_______________

No. 06-1154

UNITED STATES OF AMERICA,

Appellee,

v. 

KAMAL LATTIMORE,

Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Stafford,* Senior District Judge.

Ryan M. Schiff, with whom John Salsberg and Salsberg &

Schneider were on brief, for appellant Nascimento.

Albert F. Cullen, Jr., with whom Law Office of Albert F.

Cullen, Jr. was on brief, for appellant Talbert.

Wayne R. Murphy, with whom Murphy & Associates was on brief,

for appellant Lattimore.

Michael A. Rotker, Attorney, United States Department of

Justice (Criminal Division, Appellate Section), with whom Michael

J. Sullivan, United States Attorney, Theodore B. Heinrich, Glenn A.

MacKinlay, and Donald L. Cabell, Assistant United States Attorneys,

were on brief, for appellee. 

July 2, 2007

* Of the Eleventh Circuit, sitting by designation.
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SELYA, Senior Circuit Judge. The pivotal issue in this

case concerns the application of the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, to a street

gang engaged in violent, but noneconomic, criminal activity. That

issue possesses constitutional implications weighty enough to have

led one of our sister circuits to fashion a special, more rigorous,

version of RICO's statutory "affecting commerce" requirement for

use in connection with defendants involved with enterprises that

are engaged exclusively in noneconomic criminal activity. See

Waucaush v. United States, 380 F.3d 251, 256 (6th Cir. 2004).

Although we are reluctant to create a circuit split, we conclude,

after grappling with this difficult question, that the normal

requirements of the RICO statute apply to defendants involved with

enterprises that are engaged only in noneconomic criminal activity.

Based on that conclusion and on our resolution of a golconda of

other issues ably raised by highly competent counsel, we affirm the

appellants' convictions. The tale follows.

I.

We begin with a brief synopsis of the facts. We will

embellish upon that synopsis as we reach and discuss particular

issues.

In the mid-1990s, a group of youths of Cape Verdean

ancestry routinely congregated around Wendover Street in the

Dorchester section of Boston, Massachusetts. In 1995, one of these
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youths (Nardo Lopes) killed another (Bobby Mendes). Nardo then

went into hiding; as of the time of trial in this case, he remained

a fugitive from justice.

Nardo's brother, Augusto Lopes, was also a Wendover

regular. Though he was incarcerated at the time of the Mendes

slaying, he resolved upon his release from prison, in July of 1996,

to kill the potential witnesses against his brother. That resolve

extended to many of his old Wendover Street associates.

In late 1997, Augusto Lopes began associating with Manny

Monteiro, who introduced him to a group of individuals whose base

of operations was Stonehurst Street in Dorchester. Lopes's new

friends were part of a street gang that controlled Stonehurst

Street. He soon learned that Stonehurst members "had problems"

with their Wendover counterparts. Although the source was never

clearly established, the antagonism was real: during the period

from 1998 to 2000, a wave of violence transpired in which

Stonehurst members repeatedly shot at Wendover members and Wendover

members retaliated in kind. Augusto Lopes was integrally involved

in this cacophony of ongoing mayhem.

In September of 2004, a federal grand jury returned a

thirty-three count superseding indictment naming thirteen

defendants. Three of these defendants are appellants here. With

respect to them, the flagship charge was that they had violated

RICO through their membership in a racketeering enterprise:
The indictment also charged that another purpose of the 1

enterprise was "to sell crack cocaine and marijuana." However, the

evidence at trial indicated that while individual Stonehurst

members had engaged in drug trafficking, Stonehurst itself had not.

Accordingly, the trial judge ruled as a matter of law that there

was insufficient evidence to prove that the Stonehurst enterprise

engaged in drug dealing. We assume the correctness of this ruling.

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Stonehurst. The indictment alleged that Stonehurst's primary

purpose was "to shoot and kill members, associates, and perceived

supporters of a rival gang in Boston known as Wendover." To 1

buttress this allegation, the indictment enumerated nearly two

dozen instances of murder and assault with intent to kill

purportedly committed by Stonehurst members.

Seven individuals, including all three appellants, were

tried together on assorted charges stemming from their involvement

with Stonehurst. Augusto Lopes became a government witness and

testified against his former Stonehurst allies, as did two other

cooperating witnesses (Marcelino Rodrigues and Jason Burgo). The

government also adduced testimony from a number of other eyewitnesses about various shootings. Police testimony, ballistics

evidence, and the like completed the prosecution's case.

Following a twenty-six day trial, four defendants were

acquitted. The three appellants did not fare as well. 

The jurors convicted one appellant, Jackson Nascimento,

of racketeering, 18 U.S.C. § 1962(c), racketeering conspiracy, id.

§ 1962(d), conspiracy to commit murder in aid of racketeering in

violation of the Violent Crimes in Aid of Racketeering statute
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(VICAR), id. § 1959(a)(5), a VICAR assault charge, id. §

1959(a)(3), and use of a firearm in the commission of a crime of

violence, id. § 924(c). The racketeering conviction was supported

by special findings to the effect that Nascimento had (i) shot

Zilla DoCanto and (ii) conspired to murder members of Wendover.

The jury rejected the government's contention that Nascimento had

perpetrated a second shooting and acquitted him of a second count

of violating 18 U.S.C. § 924(c).

The jurors convicted a second appellant, Lance Talbert,

on a RICO conspiracy count, a substantive RICO count, and a count

charging VICAR murder conspiracy. The jury found specially that

Talbert had shot Wendover member Adiello DaRosa and had conspired

to murder members of Wendover. The government also had charged

Talbert with having engaged in another shooting but dropped those

charges at the close of the evidence.

The jurors convicted the third appellant, Kamal

Lattimore, on both a RICO conspiracy count and a substantive RICO

count. However, the district court immediately granted a judgment

of acquittal as to the latter count. The jury acquitted Lattimore

of a firearms charge and of charges of VICAR assault and VICAR

conspiracy.

Following the verdict, the appellants moved for judgments

of acquittal or, in the alternative, new trials. See Fed. R. Crim.

P. 29, 33. The district court denied these motions in full.
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On December 15, 2005, the district court sentenced

Nascimento to a 171-month incarcerative term, Talbert to a 57-month

incarcerative term, and Lattimore to a 46-month incarcerative term.

These timely appeals ensued.

II.

Five elements must coalesce to make out a substantive

RICO violation. The government must show: "(1) an enterprise

existed; (2) the enterprise participated in or its activities

affected interstate commerce; (3) the defendant was employed by or

was associated with the enterprise; (4) the defendant conducted or

participated in the conduct of the enterprise; (5) through a

pattern of racketeering activity." United States v. Marino, 277

F.3d 11, 33 (1st Cir. 2002). The appellants challenge the

sufficiency of the evidence on the first, second, and fifth

elements.

VICAR, as well as RICO, is in play here. VICAR requires

that a defendant have committed a crime of violence in return for

something of pecuniary value from, or in order to advance or

maintain his position within, an enterprise affecting interstate

commerce that is engaging in a pattern of racketeering activity.

18 U.S.C. § 1959. Thus, a successful sufficiency challenge to the

RICO convictions also will serve to undermine the VICAR

convictions. Similarly, inasmuch as Nascimento's conviction under

18 U.S.C. § 924 was predicated on his having committed a VICAR
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assault on Zilla DoCanto, that conviction will be nullified if the

VICAR charge is found to be unsupportable.

Although the appellants' arguments come in a

kaleidoscopic array of shapes and sizes (including frontal attacks

on the sufficiency of the evidence, questions about statutory

construction, constitutional challenges, and complaints about jury

instructions), we organize our discussion thematically, element by

element.

A.

The first element of a RICO offense requires proof of the

existence of an enterprise. The enterprise need not be a

legitimate business or a form of organization sanctioned by state

law. United States v. Turkette, 452 U.S. 576, 587 (1981). It

"need only be a group of persons associated together for a common

purpose of engaging in a criminal course of conduct." United

States v. Connolly, 341 F.3d 16, 28 (1st Cir. 2003) (citations and

internal quotation marks omitted).

Despite the absence of any requirement of formal

sanction, the government nonetheless must prove that the enterprise

existed in some coherent and cohesive form. Turkette, 452 U.S. at

583. It follows that the enterprise must have been an "ongoing

organization" operating as a "continuous unit." Connolly, 341 F.3d

at 25. 
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In all events, the enterprise must be distinct from the

pattern of racketeering activity that constitutes the fifth, and

final, element of a RICO offense. See Turkette, 452 U.S. at 583.

An enterprise is chiefly distinguished from the pattern of

racketeering activity by the fact that it possesses some goal or

purpose more pervasive and more enduring than the instant

gratification that can accrue from the successful completion of

each particular criminal act. See Connolly, 341 F.3d at 25. 

Here, the appellants argue that the government failed to

present sufficient evidence of the existence of an enterprise or,

alternatively, that the district court's jury instructions obscured

the difference between RICO's "enterprise" and "pattern" elements.

In a related vein, they argue that the government failed to prove

that the enterprise was of sufficient duration vis-à-vis the time

frame that was set forth in the indictment. We address these

arguments sequentially.

1. 

We first ponder the sufficiency of the government's

evidence concerning the existence of the enterprise. With respect

to this issue, we review the record de novo to determine whether,

taking the evidence and all reasonable inferences therefrom in the

light most hospitable to the government's theory of the case, a

rational jury could find beyond a reasonable doubt that the
-10-

government had established the disputed element of the offense.

See United States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st Cir. 2006).

In attacking the sufficiency of the government's evidence

anent the existence of an enterprise, the appellants point to

testimony from various cooperating witnesses who described

Stonehurst as a loose aggregation of friends that lacked colors,

initiation rites, and a formal hierarchy. For example, Augusto

Lopes testified that Stonehurst was "just a group" whose members

"were all friends with each other, certain individuals acted out,

and some individuals didn't do nothing at all." Similarly, Burgo

said at one point that Stonehurst was "just a name." The

appellants suggest that this testimony distinguishes this case from

United States v. Patrick, 248 F.3d 11 (1st Cir. 2001), a case in

which we upheld the application of RICO to a street gang that "had

colors and signs, . . . had older members who instructed younger

ones, its members referred to the gang as family, and it had

'sessions' where important decisions were made." Id. at 19.

We agree that the factors mentioned in Patrick are

relevant to the question of whether a street gang constitutes an

enterprise — but their presence or absence is not dispositive of

the issue. Here, the government provided other testimony that

could have prompted a jury reasonably to conclude that Stonehurst

was an enterprise. After all, Stonehurst members used a shared

cache of firearms that were regarded as property of the gang. The
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weapons were handed around and used by several different Stonehurst

members to shoot Wendover sympathizers. One erstwhile Stonehurst

member, Rodrigues, testified that he had traveled to purchase

weapons for "the group" and clarified that by "the group" he meant

"Stonehurst."

In addition to testimony about Stonehurst's arsenal, the

record contains testimony suggesting that Stonehurst members selfidentified as belonging to an organization. Cooperating witnesses

were able to identify precisely a wide variety of individuals as

being associated with Stonehurst. The witnesses also displayed an

ability to distinguish between members and friends.

Then, too, Stonehurst members kept tabs on one another

and informed one another when things would be "hot" because of a

recent shooting. They acted on behalf of one another by attempting

to assassinate witnesses to each other's crimes. And, finally,

members trained other members in the use of night vision goggles,

binoculars, and police evasion tactics to enable them more

efficiently to carry out their shared purpose of killing Wendover

members.

Taking this evidence in the light most favorable to the

government, we conclude, as did the district court, that even

though Stonehurst lacked some of the accouterments of more

structured street gangs, a rational jury could find that it had a

sufficiently well-defined shape to constitute an enterprise in the
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requisite sense. Stonehurst exhibited group cohesion over time;

its membership pooled and shared resources; the individuals

involved had a sense of belonging and self-identified as Stonehurst

members; and the group had a well-honed set of goals. We think

that this is enough, if barely, to constitute a RICO enterprise.

See Connolly, 341 F.3d at 27. 

2.

Talbert makes a related contention: that even if the

evidence suffices to support a finding that Stonehurst was an

enterprise, the district court's jury instructions were confusing.

He directs his umbrage at the court's instruction that a RICO

enterprise need not have an "ascertainable structure." As Talbert

acknowledges, this instruction has been approved as good law in

this circuit. See Patrick, 248 F.3d at 18.

Some challenges to jury instructions are reviewed for

abuse of discretion. See, e.g., United States v. Perez, 299 F.3d

1, 5 (1st Cir. 2002). Others, however, assign error in, say, the

nature of the elements of an offense. That type of claim engenders

de novo review. See, e.g., Marino, 277 F.3d at 28; see also United

States v. Figueroa-Encarnacíon, 343 F.3d 23, 29 (1st Cir. 2003)

(noting the standard-of-review distinction). Because Talbert's

challenge is rooted not in an abstract principle of law but in the

trial court's choice of language, with a view to minimizing
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potential juror confusion, the abuse of discretion standard governs

our review. 

Because the challenged instruction tracks an explicit

holding of this court, Talbert starts at a considerable

disadvantage. He insists, however, that where, as here, there is

only "minimal" evidence of the existence of an enterprise, the

trial court should avoid the topic of ascertainable structure

altogether. In a close case, his thesis runs, such an instruction,

though technically correct, promotes juror confusion.

This argument is untenable. When an instruction is

pertinent to the issues submitted to the jury and constitutes an

accurate statement of the law, it is hard to imagine any basis for

a claim of error. See United States v. Keene, 341 F.3d 78, 83 (1st

Cir. 2003). Here, moreover, the district court took great pains to

emphasize that "[a]n enterprise is not merely a related assortment

of criminal activities." Rather, the court said, "there must be

some goal — a purpose of engaging in a course of conduct — beyond

this isolated benefit that can come from the commission of each

criminal act." The court also made clear that "[t]he enterprise

element [of the offense] is different from the racketeering

activity element." These instructions were pellucid as to the

distinctions between the "enterprise" and "pattern" elements of the

offense. We see no realistic possibility that they were a source
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of juror confusion. Consequently, the district court did not abuse

its discretion in charging the jury as it did.

3.

The appellants lodge a final objection to the finding

that Stonehurst constituted an enterprise. This objection centers

on the longevity of the enterprise. It is not a claim that

Stonehurst's existence was too ephemeral to satisfy the minimum

duration required by the RICO statute, see H.J. Inc. v. Nw. Bell

Tel. Co., 492 U.S. 229, 242 (1989) (discussing the continuity

requirement applicable to RICO enterprises), but rather a claim

that the duration of Stonehurst's existence, as proven, fell short

of the period suggested in the indictment. 

The argument proceeds as follows. First, the appellants

note that the indictment specified that the named defendants

"[f]rom a time unknown, but at least by July 1996, until the date

of the Indictment" — September 30, 2004 — "did unlawfully and

knowingly conduct and participate, directly and indirectly, in the

conduct of the affairs of the [e]nterprise, through a pattern of

racketeering activity." They then point out that the district

court told the jury, without objection, that in order to establish

the enterprise element, the government had to prove that "the

enterprise [had] continue[d] in essentially unchanged form during

substantially the entire period alleged in the indictment"

(emphasis supplied). Next, the appellants remind us that "when a
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cause is submitted to the jury under an instruction, not patently

incorrect or internally inconsistent, to which no timely objection

has been lodged, the instruction becomes the law of the case."

United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992). The

question then becomes — or so the appellants say — whether the

government provided "evidence sufficient to establish the elements

required by the actual instructions given." United States v.

Zanghi, 189 F.3d 71, 79 (1st Cir. 1999). The appellants conclude

that this question must be answered in the negative.

The district court rejected this construct. It found

that Rodrigues's testimony supported a finding that the enterprise

existed from at least 1997 until at least 2001. It further found

that the evidence indicating that the Wendover/Stonehurst feud had

its origins in the Mendes killing was enough to support the

conclusion that Stonehurst was active as far back as 1995. While

it acknowledged that there was no evidence of Stonehurst's

existence from 2002 through 2004, the court found such evidence

unnecessary because substantially all the relevant activity of the

enterprise took place during the 1996-2001 time frame. The court

added that, in any event, the exact duration of the enterprise was

not an essential element of the offense. In its view, the

government demonstrated the required continuity, and no more was

exigible.
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The court concluded by analyzing what had happened as a

type of variance. A variance occurs when "the proof at trial

depicts a scenario that differs materially from the scenario limned

in the indictment." United States v. Escobar-de Jesús, 187 F.3d

148, 172 (1st Cir. 1999). The existence of a variance does not

automatically result in the vacation of a conviction. A variance

only requires the setting aside of a conviction if it is

prejudicial. See United States v. Villarman-Oviedo, 325 F.3d 1, 21

(1st Cir. 2003). Discerning no prejudice from this particular

variance, the district court denied the appellants' motions for

either judgment of acquittal or a new trial. 

The appellants attack the district court's ruling on

several levels. Their first attack is fact-oriented: they concede

that Rodrigues testified that he was a Stonehurst member from 1997

through 2001, but they assert that he only described activities

occurring during 1998 and 2000. This is too isthmian a view of

Rodrigues's testimony.

Rodrigues testified that the shootings between Wendover

and Stonehurst "started . . . back in '95" and were "still

ongoing." At the very least, this testimony supports the district

court's conclusion that Stonehurst, as an entity dedicated to

wreaking havoc on Wendover, existed through the end of Rodrigues's

tenure (2001). The question, then, is whether the jury verdict can
-17-

be supported by testimony concerning that somewhat truncated time

span.

The appellants, citing the Second Circuit's decision in

United States v. Morales, 185 F.3d 74 (2d Cir. 1999), insist that

it cannot. In Morales, the indictment alleged that the defendants

had belonged to a continuous enterprise that existed for a nineyear period. Id. at 78. The proof, however, showed conclusively

that the enterprise had been dormant for seven years in the middle

of that period because its entire membership had been incarcerated.

Id. at 79. The court held that the evidence was insufficient to

show that the "enterprise existed for the duration alleged in the

indictment." Id. at 81. The court refused to "consider whether

the evidence was sufficient to support a finding of a shorter

racketeering enterprise" on the ground that the "indictment charged

a single nine-year enterprise, and the jury was instructed that it

could only convict on the racketeering and racketeering-dependent

counts if it found that the specific enterprise set out in the

indictment existed." Id.

The appellants asseverate that this case and Morales are

peas in a pod. They are not. The concerns underlying the decision

in Morales are very different from what is involved here. In

Morales, the government attempted to play fast and loose with

RICO's continuity requirement — and it did so in a way that

threatened to impair the defendants' rights (by constructing the
The trial transcript reveals quite clearly that the able 2

district judge reined in witnesses who attempted to discuss matters

outside that time frame.

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indictment in a manner that allowed the introduction, in a single

trial, of evidence concerning two distinct criminal organizations).

Under those circumstances, we readily understand why the Morales

court was disinclined to allow the government to argue, after

putting before the jury significantly inculpatory evidence from

both periods, that either organization, by itself, could have

satisfied the continuity requirement. That would, in effect, have

given the government a second bite at the cherry.

The scenario here is vastly different. While the

indictment may have marginally overclaimed — the record contains

very little concerning the 2002-2004 period — there was no question

of shifting enterprises and no attempt to stack the deck by

introducing damning bits of evidence from a different

orangization's conduct in a different era. Moreover, the

government had adduced ample proof that a single enterprise was

continuously active in the slightly narrowed period. Indeed, the

trial seems to have proceeded on the premise that this narrowed

period was the relevant time frame.2

To cinch matters, the appellants had every reason to

believe that the period from 1996 through 2001 would be the crucial

period for purposes of the RICO and other racketeering-dependent

counts. Of the twenty-one racketeering acts listed in the
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indictment, twenty were alleged to have occurred in that time frame

(the lone exception — the general charge that Stonehurst members

had conspired to kill Wendover members — was described as having

spanned the period from 1996 until 2004). This not only erases any

doubt that the indictment gave the appellants fair notice of the

focus of the charges against them, but also confirms that the

government did not benefit in any way from describing a slightly

longer period in the indictment. 

Under these circumstances, we do not think that the

government can be said to have assumed the burden of proving the

operation of Stonehurst from 1996 to 2004 merely by mentioning

those dates in the indictment. The period represented a mere

factual allegation; it did not constitute an element of the

offense. That is a significant difference. See United States v.

Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006) (describing the

difference between a deviation from the charging terms and a

deviation from facts alleged in an indictment).

In the last analysis, we see no merit in the appellants'

"law of the case" argument. The district court charged the jury in

relevant part that the government had the burden of proving that

the enterprise operated continuously "during substantially the

entire period alleged in the indictment." "Substantially" is a

relative term, which invites a weighing of the salience of covered

items against the salience of non-covered items. Cf. United States
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v. Castaneda, 162 F.3d 832 838 (5th Cir. 1998) (holding that a

party has "substantially performed" when his "relatively

insignificant omissions" are "dwarfed by [his] performance").

Bearing in mind that virtually all the overt acts that comprised

the substance of the indictment were completed prior to 2002, we

think that a rational jury could conclude that the period form 1996

through 2001 was "substantially" the entire period covered by the

indictment. 

B.

A second element of a RICO violation is an effect on

interstate or foreign commerce. Foreign commerce is not implicated

here, and the district court instructed the jury that the

interstate commerce requirement would be satisfied by a showing

that Stonehurst's actions had at least a de minimis effect on

interstate commerce. This instruction would have been unarguably

correct in most RICO cases. See, e.g., Marino, 277 F.3d at 35;

United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001).

Seizing on the fact that Stonehurst did not engage in any economic

activity, see supra note 1, the appellants argue that this case is

different. In their view, the instruction misstates RICO's

statutory requirement with respect to enterprises that have not

engaged in economic activity. They argue, in the alternative, that

if the instruction is correct as a matter of statutory

interpretation, the statute is unconstitutional as applied to their
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enterprise. As a fallback, they assert that, even if the

instruction can withstand these attacks, the evidence was

insufficient to satisfy even the modest de minimis standard. We

consider each facet of this asseverational array.

1. 

We start with the appellants' contention that, on the

facts of this case, the RICO statute requires more than a de

minimis effect on interstate commerce. This is an uphill battle;

this court has held, squarely and explicitly, that a de minimis

effect on interstate commerce is all that is required to satisfy

RICO's commerce element. See Marino, 277 F.3d at 35. 

The appellants attempt to skirt this obstacle by

suggesting that a more rigorous standard pertains in cases, like

this one, in which a RICO enterprise has not engaged in economic

activity. To distinguish Marino, they point out that the

enterprise in question there was found to be involved in drug

trafficking — plainly a form of economic activity.

This argument is peculiar. Although nothing in the text

of RICO suggests it, the appellants urge us to read a single phrase

in the statute as requiring different things in different

situations: in a case involving an enterprise engaged in economic

activity, the government would have to show only a de minimis

effect on interstate commerce, whereas in a case involving an

enterprise engaged in violence but not in economic activity, the
Among their gallimaufry of arguments, the appellants suggest 3

that our opinion in United States v. McCormack, 371 F.3d 22, 28

(1st Cir. 2004), vacated on other grounds, 543 U.S. 1098 (2005),

required a showing of a heightened effect on commerce to sustain a

Hobbs Act conviction when the victim of the robbery was not a

business. This suggestion overlooks the fact that we applied a de

minimis standard in McCormack itself. See id. (stating that the

evidence showed "a 'realistic probability' that the [underlying

crime] would have a de minimis effect on interstate commerce").

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government would have to show a more substantial effect on

interstate commerce. We reject this iridescent reading of the

statute. 

By its terms, the RICO statute applies to any "enterprise

engaged in, or the activities of which affect, interstate or

foreign commerce." 18 U.S.C. § 1962(c). There is nothing in

either the statutory language or the legislative history that

supports the appellants' contention that these words mean different

things as applied to different types of enterprises. Courts are

not charged with the task of writing statutes or improving upon

them but, rather, with the more mundane task of figuring out,

consistent with the statutory text, what the authoring Congress

intended. This division of functions, as well as basic principles

of statutory construction, counsels persuasively against a court

trying to tease from the simple word "affect" sophisticated

gradations of meaning that will vary from situation to situation.

See Ratzlaf v. United States, 510 U.S. 135, 143 (1994) ("Ascribing

various meanings to a single iteration of [a word] . . . would open

Pandora's jar.").3
The language in McCormack to which the appellants advert relates to

the degree of scrutiny, not the quantum of proof.

We think it is useful to note at this juncture that Waucaush 4

was decided without the benefit of the Supreme Court's decision in

Gonzales v. Raich, 545 U.S. 1 (2005), a precedent that we find

instructive on the constitutional issue. See Part II(B)(2), infra.

 

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The appellants try to clear this hurdle by using the

Sixth Circuit's decision in Waucaush as a springboard. That court

adopted the position that the appellants espouse, holding that the

RICO statute reaches an enterprise engaged in noneconomic violent

crime only if the enterprise's activities have a substantial effect

on interstate commerce. 380 F.3d at 255-56. The appellants invite

us to follow Waucaush. We respectfully decline the invitation.

In reaching this result, the Waucaush court did not

employ any of the usual tools of statutory construction. The

absence of anything in the reasoning of that court that explains

how it is possible, consistent with sound canons of statutory

construction, to read the word "affect" as possessing two different

meanings depending upon additional facts not mentioned in the

statute itself, makes the decision suspect. 

Instead of relying upon principles of statutory

construction, the Waucaush court based its holding on a professed

desire to "avoid interpreting a statute to prohibit conduct which

Congress may not constitutionally regulate." Id. at 255. Echoing 4

this refrain, the appellants argue, in effect, that application of
-24-

the RICO statute to their activities raises grave constitutional

concerns and, for that reason, we should abstain from reading the

statute as encompassing noneconomic activities that have only a de

minimis effect on interstate commerce. To hammer home this point,

they remind us that the Supreme Court recently deployed the

constitutional avoidance doctrine in construing a federal arson

statute to avoid commerce power concerns. See Jones v. United

States, 529 U.S. 848, 857-58 (2000) (construing 18 U.S.C. §

844(i)). 

This argument reflects a misunderstanding of the

operation of the doctrine of constitutional avoidance. Since Jones

and Waucaush were decided, the Supreme Court has made it clear that

the doctrine does not serve to give alternative meanings to

statutory phrases in cases in which a statute's application might

be constitutionally dubious. Courts simply are not "free to

'interpret' statutes as becoming inoperative when they 'approach

constitutional limits.'" Clark v. Martinez, 543 U.S. 371, 384

(2005). Rather, the doctrine of constitutional avoidance operates

at "the lowest common denominator," providing a single definition

for a phrase that is then applied even in cases in which a broader

reading would not be constitutionally dubious. Id. at 380. 

That ends this aspect of the matter: because, in Marino,

we already have defined the word "affecting" as used in the RICO

statute, we are not now free to alter the meaning of that term for
The Jones Court specifically distinguished the phrasing of 5

the arson statute from statutes reaching all activity "affecting

commerce," describing the latter phrase as "words that, when

unqualified, signal Congress' intent to invoke its full authority

under the Commerce Clause." Jones, 529 U.S. at 854. Given that

the RICO statute uses precisely this phraseology, we do not think

that Jones lends any support to the notion that the words "affect

. . . commerce" may be read vagariously in the name of

constitutional avoidance. 

-25-

a particular fact pattern. Nor is the option of limiting the

definition of the term "enterprise" to profit-seeking entities open

to us. See Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249,

262 (1994). Given the case law, there is simply no room remaining

for efforts at constitutional avoidance.

Jones is not to the contrary. In that case, the Court

focused upon a particular phrase in the federal arson statute:

"used in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce." 18 U.S.C. § 844 (i).

The Court determined that the word "used" denotes "active

employment." Jones, 529 at 855. Utilizing that definition, it

concluded that the statute did not cover the burning of owneroccupied residential real estate. See id. at 859. The Court did

not give the statutory language a case-specific meaning but,

rather, provided a single definition applicable in all cases. The 5

appellants ask us to do something very different here: to give two

divergent meanings to a single word in a single statute and to pick

and choose between those definitions depending on the facts of

future cases. We are not willing to undertake so exotic a mission.
-26-

In a final sortie, the appellants argue that the district

court erred in refusing to limit the definition of conduct that

"affect[s]" commerce to conduct detrimental to commerce. This

argument is gleaned from the Supreme Court's holding in Scheidler,

510 U.S. at 262, that RICO could be applied to an enterprise that

engaged in racketeering activity notwithstanding the absence of an

economic motive. The Scheidler Court reasoned that "[a]n

enterprise can surely have a detrimental influence on interstate or

foreign commerce without having its own profit-seeking motives."

Id. at 258. The appellants read this language as implying that

only detrimental effects on commerce are within the contemplation

of the RICO statute when applied to enterprises that are not

economically motivated.

Although one district court has read Scheidler in this

restrictive manner, see United States v. Garcia, 143 F. Supp. 2d

791, 815 (E.D. Mich. 2000), we are not persuaded. The fact that

the Scheidler Court discussed only detrimental effects is something

of a makeweight; that analysis corresponded to the facts of the

particular case. Nothing in the opinion suggests that the Court's

casual reference to "detrimental influence" was intended to limit

the "affecting commerce" language of the RICO statute.

The right of the federal government to use the power

conferred by the Commerce Clause for regulatory objectives, apart

from the direct promotion and protection of interstate commerce,
-27-

has been ingrained in our jurisprudence for over a century. See,

e.g., Champion v. Ames (The Lottery Case), 188 U.S. 321, 362

(1903). Because the word "affect" has an established meaning in

statutes defining the scope of federal jurisdiction as bespeaking

an intention to legislate to the outermost perimeter of Congress's

Commerce Clause power, see Jones, 529 U.S. at 854, statutes

regulating undescribed activities that "affect" interstate commerce

perforce must reach all activities that come within Congress's

power. This paradigm includes ensuring that the tools of commerce

are not employed in a manner injurious to the public. Hodel v. Va.

Surface Min. & Reclam. Ass'n, Inc., 452 U.S. 264, 281-82 (1981). 

Against this backdrop, we cannot say that the word

"affect," as used in the RICO statute, is restricted to conduct

that produces detrimental effects on commerce. This is especially

true where, as here, we are asked to apply the definition in a

subset of RICO cases (i.e., cases involving enterprises engaged

exclusively in noneconomic activities), thereby creating an

anomalous situation in which a single word in a single statute

simultaneously would have varying meanings, depending on context.

We conclude, therefore, that the district court did not err in

refusing to deviate from the accepted meaning of the phrase

"affect[ing] . . . commerce."

2.
-28-

We move now to the appellants' most touted claim of

error: that the RICO statute, as applied to an enterprise engaged

exclusively in noneconomic criminal activity, is unconstitutional.

In framing this claim, the appellants place great weight on a

trilogy of recent Supreme Court cases establishing limits on the

federal government's power to legislate under the Commerce Clause.

See United States v. Morrison, 529 U.S. 598, 627 (2000); Jones, 529

U.S. at 859; United States v. Lopez, 514 U.S. 549, 567 (1995).

These cases, in combination, galvanized the Sixth Circuit in

Waucaush, so the opinions deserve careful attention.

In the first of these cases, the Court struck down a

federal statute that, without reference to any effect on commerce,

criminalized the possession of a firearm within 1,000 feet of a

school. Lopez, 514 U.S. at 551. In concluding that Congress

lacked power under the Commerce Clause to enact the school-zone

legislation, the Court explained that the commerce power may only

be used to justify three different kinds of laws: those regulating

the channels of interstate commerce, those regulating the

instrumentalities of and things moving in interstate commerce, and

those regulating activities substantially affecting interstate

commerce. See id. at 558-59. Because it is this third category of

regulatory authority that is in issue here, we elaborate briefly on

it.
-29-

With respect to this third category, the Court noted that

individual instances of regulated conduct need not be substantial

as long as the aggregate conduct exerts a substantial effect on

interstate or foreign commerce. See id. The Court warned,

however, that aggregation is appropriate only as to "economic"

activities. Id. at 560. The Court has since defined "economic,"

in the relevant sense, as relating to the "production,

distribution, or consumption of commodities." Gonzales v. Raich,

545 U.S. 1, 25 (2005) (quoting Webster's Third New International

Dictionary 720 (1966)).

The second case in the trilogy built upon this foundation.

There, the Court struck down the Violence Against Women Act, which

had sought to provide federal civil remedies to victims of gendermotivated violence. Morrison, 529 U.S. at 602. Notwithstanding a

congressional finding that gender-motivated violence exerts a

substantial drain on the economy, the Morrison Court "reject[ed] the

argument that Congress may regulate noneconomic, violent criminal

conduct based solely on that conduct's aggregate effect on

interstate commerce." Id. at 617. The Court explained that "the

suppression of violent crime and the vindication of its victims" was

quintessentially within the police power of the several states (and,

by implication, not within the federal commerce power per se). Id.

at 618.
-30-

The remaining case in the trilogy is Jones. As previously

discussed, see supra Part II(B)(1), the Jones Court held that the

incineration of private residences was beyond the reach of a federal

arson statute. 529 U.S. at 859. That narrow interpretation enabled

the Court to avoid "grave and doubtful constitutional questions."

Id. at 857.

Drawing on these precedents, the appellants maintain that

their criminal activities are an almost exact match for the violent

criminal conduct that the Morrison Court refused to aggregate (and,

thus, placed beyond the reach of Congress's Commerce Clause power).

They add, moreover, that federal regulation of noneconomic street

crime under a theory of aggregation would obliterate any semblance

of a constitutional limit on federal power. Cf. Lopez, 514 U.S. at

567 (commenting that the Constitution's enumeration of federal

powers "presupposes something not enumerated").

We share the appellants' concern that the government's

theory here, aggressively pursued, might threaten to trespass on an

area of traditional state concern. But though the argument has some

bite, it ultimately fails to persuade.

The principal problem with the argument is that it runs

at cross purposes with the Supreme Court's decision in Raich (the

Court's most recent explication of the scope of federal power under

the Commerce Clause). The Raich decision is critically important

for present purposes because it is more directly on point than any
-31-

case in the earlier trilogy. Lopez and Morrison involved facial

challenges to federal statutes: in each case, the parties asserted

that a particular statute or provision fell outside Congress's

commerce power in its entirety. Jones was an exercise in statutory

construction. 

The case at hand, however, entails an as-applied challenge

to a generally valid federal statute. Raich is of the same genre;

it involved a request "to excise individual applications of a

concededly valid statutory scheme." Raich, 545 U.S. at 23. The

Raich Court deemed this distinction "pivotal" because when "the

class of activities is regulated and the class is within the reach

of federal power, the courts have no power to excise, as trivial,

individual instances of the class." Id. (internal quotation marks

omitted). Raich supplies a gloss on the earlier trilogy and, in the

bargain, offers meaningful guidance as to how courts should approach

as-applied challenges under the Commerce Clause.

In Raich, the Supreme Court upheld two provisions of the

Controlled Substances Act, 21 U.S.C. §§ 841(a)(1), 844(a), as

applied to the intrastate and noncommercial cultivation of medical

marijuana. Raich, 545 U.S. at 9. There, the plaintiffs sought to

define their activity at a level of specificity designed to

highlight its noneconomic nature. The Court rejected this effort

at miniaturization, preferring instead to defer to Congress's

declaration of the level of specificity with which an activity
-32-

should be classified for the purpose of determining whether that

activity, in the aggregate, affects interstate commerce. See id.

at 30. The Court refused to credit either the Ninth Circuit's

effort to isolate a separate and distinct class of activity, id. at

26, or the state legislature's effort to "surgically excise[]"

medical marijuana from the generality of the drug laws, id. at 30.

The Court chose instead to defer to Congress's decision not to

distinguish between medical marijuana cultivated for noncommercial

purposes and the mine-run of marijuana cultivation. Id. at 22.

Because there was no basis on which "to excise individual components

of that larger scheme," the Court concluded that marijuana

cultivation writ large was the appropriate activity to be considered

in the Commerce Clause calculus. Id. at 28. Accordingly, the

plaintiffs' as-applied challenge failed. See id. at 32-33.

Of course, Raich is arguably distinguishable from the case

at hand on the ground that marijuana is a fungible commodity,

capable of seeping into the interstate market regardless of the

purpose for which it is grown. But we refuse to accord decretory

significance to a distinction that the Raich majority did not deem

decisive. The majority emphasized that it is the "class of

activity" that is relevant. Id. at 17. Such classes need not be

delineated with "scientific exactitude." Id. This formulation is

markedly different from the one offered by Justice Scalia, who

argued unsuccessfully that Congress may regulate noneconomic
-33-

intrastate activities "only where the failure to do so could . . .

undercut its regulation of interstate commerce." Id. at 39 (Scalia,

J., concurring in the judgment) (alteration in original). While

Justice Scalia attributes this view to the majority, see id., we

read the majority opinion — especially its disclaimer of "scientific

exactitude" — as declining to require so rigid a taxonomy. See id.

at 26-27 (opinion of the Court) (requiring only that Congress act

"rationally" when making a "policy judgment" that purely intrastate

activities are an essential part of the larger regulatory scheme).

We think that Justice Scalia's election not to join the Court's

opinion bears witness to the majority's unwillingness to take a more

extreme view.

Refined to bare essence, Raich teaches that when Congress

is addressing a problem that is legitimately within its purview, an

inquiring court should be slow to interfere. Assuming the existence

of a rational basis for the solution that Congress has devised, the

court should respect the level of generality at which Congress chose

to act. See id. at 22. It is simply too "impractical" for a court

to insist that Congress make "detailed findings proving that each

activity regulated within a comprehensive statute is essential to

the statutory scheme." Id. at 21 n.32.

Given the lessons of Raich, it is evident that the

appellants' constitutional argument — like that of the Waucaush

court — misapprehends the relevant unit of analysis. The linchpin
-34-

of their argument is the fact that Stonehurst's activities were

undertaken without an economic motive. In the long run, however,

that isolated fact is of little significance. The correct mode of

analysis requires a more global view. "Congress's power to

criminalize . . . conduct pursuant to the Commerce Clause turns on

the economic nature of the class of conduct defined in the statute

rather than the economic facts . . . of a single case." United

States v. Morales-de Jesús, 372 F.3d 6, 18 (1st Cir. 2004) (emphasis

supplied). 

Thus, the class of activity is the relevant unit of

analysis and, within wide limits, it is Congress — not the courts

— that decides how to define a class of activity. All that is

necessary to deflect a Commerce Clause challenge to a general

regulatory statute is a showing that the statute itself deals

rationally with a class of activity that has a substantial

relationship to interstate or foreign commerce. See Maryland v.

Wirtz, 392 U.S. 183, 196 n.27 (1968). The intrastate or noneconomic

character of individual instances within that class is of no

consequence. See id. This core principle is fully applicable to

criminal statutes. See Perez v. United States, 402 U.S. 146, 154

(1971) (cited with approval in Lopez, 514 U.S. at 558).

The appellants' argument cannot withstand scrutiny under

this framework. The RICO statute by its terms is limited to

racketeering enterprises that "affect . . . commerce," and the VICAR
-35-

statute is similarly circumscribed. This jurisdictional element

ties the statutes directly to commerce in a more explicit way than

the statutes at issue in Lopez, 514 U.S. at 561, or Morrison, 529

U.S. at 611, or, since neither section 841(a)(1) nor 844(a) has a

nexus requirement, even Raich. See United States v. Crenshaw, 359

F.3d 977, 986-87 (8th Cir. 2004) (drawing this distinction with

respect to VICAR).

What is more, the general class of activity is a wholly

legitimate target of Commerce Clause legislation. Racketeering

activity, as a general matter, is based largely on greed. Cf. 1

Timothy 6:10 ("[T]he love of money is the root of all evil.").

Particular manifestations include loansharking, extortion, and a

host of other financially driven crimes. See 18 U.S.C. § 1961(1)

(defining "racketeering activity"). Therefore, that class of

activity is sufficiently economic in nature that it may be

aggregated for Commerce Clause purposes. See Perez, 402 U.S. at 154

(upholding aggregation of extortionate credit transactions). 

Given the obvious ties between organized violence and

racketeering activity — the former is a frequent concomitant of the

latter — we defer to Congress's rational judgment, as part of its

effort to crack down on racketeering enterprises, to enact a statute

that targeted organized violence. See Raich, 545 U.S. at 22

(describing as a "modest" task judicial scrutiny of whether Congress

had a rational basis for encompassing particular activity within the
To be sure, this degree of deference to congressional 6

classifications may create perverse incentives. Yet, one of the

dissenters in Raich made this argument, see Raich, 545 U.S. at 46

(O'Connor, J., dissenting), and the majority bluntly rejected it.

See id. at 25 n.34 (opinion of the Court). We, like the Justices,

are confident that political checks and balances will prevent any

such legislative overreaching. 

-36-

sweep of a statute); Crenshaw, 359 F.3d at, 986 (upholding VICAR

against a Commerce Clause challenge and discussing the legitimacy

of targeting violence in aid of racketeering as a means of

controlling racketeering enterprises). Thus, applying the RICO

statute to the appellants' activities does not offend the Commerce

Clause.6

3.

We next examine the appellants' contention that the

government failed to adduce evidence sufficient to show even a de

minimis connection between Stonehurst's activities and interstate

commerce. Because Stonehurst has not been engaged in racketeering

activity of an economic nature, we employ heightened scrutiny

throughout this examination. See United States v. McCormack, 371

F.3d 22, 28 (1st Cir. 2004) (discussed supra note 3), vacated on

other grounds, 543 U.S. 1098 (2005).

The evidence most loudly bruited by the government relates

to the fact that one of the shootings perpetrated by Stonehurst

occurred in a round-the-clock tire shop engaged in interstate

commerce. The shooting took place after midnight and the ensuing

investigation caused the shop to close for several hours. 
-37-

The government first posits that the temporary closing of

a business engaged in interstate commerce had an effect on commerce

sufficient to satisfy the de minimis standard. In support of this

proposition, it cites cases such as United States v. Vega Molina,

407 F.3d 511, 527 (1st Cir. 2005), United States v. Juvenile Male,

118 F.3d 1344, 1349 (9th Cir. 1997), and United States v. Davis, 30

F.3d 613, 615 (5th Cir. 1994). But the suggested comparison is not

apt: in those cases, the closed business was itself the target of

a planned robbery. In contrast, the Stonehurst members had no

designs on the tire shop per se; they merely held a grudge against

one of the shop's customers and happened to find it convenient to

ambush him there. 

To add another distinguishing dimension, the closings in

the cited cases were for longer intervals and, thus, caused

considerably more disruption of the business. See, e.g., Vega

Molina, 407 F.3d at 527 (describing a full-day closure); Juvenile

Male, 118 F.3d at 1349 (describing a closure lasting "several

days"); Davis, 30 F.3d at 615 (describing the temporary shutdown of

four gas stations). In contrast, the tire shop here was closed, in

the dead of night, for a matter of hours. Moreover, the proprietor

testified that he "suspected" that some business had been lost

because there was less "paperwork" than usual but he could not

definitively identify any such shortfall.
-38-

The government also posits that Stonehurst members'

regular use of cellular telephones as a means of coordinating their

activities comprised the requisite nexus to commerce. But again,

the cases that it cites are of scant assistance. In each of them,

the court mentioned telephone use only after it had enumerated a

series of more binding links to commerce. See United States v.

Delgado, 401 F.3d 290, 297 (5th Cir. 2005) (chronicling involvement

in international drug trafficking, use of the mails, and use of

Western Union); United States v. Pipkins, 378 F.3d 1281, 1294-95

(11th Cir. 2004) (describing trafficking of women and recruitment

of prostitutes across state lines), vacated on other grounds, 544

U.S. 902 (2005). 

To be sure, one court has ruled that "telephone use by the

[enterprise] sufficiently affects interstate commerce to satisfy the

RICO nexus requirement," United States v. Muskovsky, 863 F.2d 1319,

1325 (7th Cir. 1988), but the enterprise at issue there was engaged

in economic activity. We are more dubious here both because the

enterprise was devoted to noneconomic activities and because the

government's evidence concerning cell-phone use was skimpy. 

The government's best evidence on this point consisted of

testimony to the effect that gang members communicated with each

other by cell phone in order to keep abreast of important

information, such as when things had become "hot" following a

shooting. In addition, at least two shootings attributable to
-39-

Stonehurst (those directed at Wendover members Luis Carvalho and

Antonio Cabral) were precipitated by cell-phone calls to or between

Stonehurst members identifying where the intended victim might be

found. There was, however, some countervailing evidence. For

example, the government's star witness, Augusto Lopes, stated that

Stonehurst did "[n]ot necessarily" use cell phones to discuss acts

of violence because "they can be bugged." 

In the end, we need not resolve whether either the tire

shop or cell-phone evidence, alone or in tandem, suffices to make

out the requisite de minimis connection between the enterprise and

interstate commerce. As we explain below, there is surer footing

in this case for a finding that the government satisfied the

"affecting commerce" element of the offense. 

The record reflects that Stonehurst maintained an arsenal

— no fewer than nine different firearms used by Stonehurst members

in carrying out Stonehurst business. This and other evidence led

the district court to conclude that Stonehurst was a "massive

purchaser of guns." With one exception (a Smith & Wesson revolver

made in Massachusetts), all the firearms acquired by Stonehurst had

been manufactured outside of Massachusetts and, thus, had moved in

interstate commerce.

The appellants try to blunt the force of this evidence by

citation to United States v. Kallestad, 236 F.3d 225 (5th Cir.

2000), in which the Fifth Circuit stated "[i]t is one thing for
Travel to another state in order to effectuate a gun purchase 7

distinguishes this case from Garcia, a district court case relied

on by the appellants. In finding insufficient evidence of economic

activity to sustain a RICO conviction of a street gang, the Garcia

court took pains to note the absence of any allegation "that the

members of the [gang] traveled out of state to purchase weapons."

143 F. Supp. 2d at 807.

-40-

Congress to prohibit possession of a weapon that has itself moved

in interstate commerce, but it is quite another thing for Congress

to prohibit homicides using such weapons." Id. at 229. Were the

wielding of out-of-state guns, simpliciter, the only hook on which

the "affecting commerce" element could be hung, the Fifth Circuit's

caveat might give us pause. Here, however, the "gun" evidence is

strengthened measurably by testimony that, during the currency of

the RICO conspiracy, Lattimore traveled from Massachusetts to New

Hampshire, purchased a firearm, and brought it back to

Massachusetts. That weapon became part of Stonehurst's arsenal and

was later fired by a Stonehurst member at a car in which Wendover

members were thought to be riding. 

The fact that a Stonehurst member actually crossed state

lines to purchase a weapon for use in carrying out the enterprise's

activities is entitled to great weight in the decisional calculus;

crossing state lines for purpose of engaging in a commercial

transaction is a paradigmatic example of an activity that falls

within the compass of the commerce power. Cf. United States v. 7

Clark, 435 F.3d 1110, 1114 (9th Cir. 2006) (noting that "requiring

travel in foreign commerce, coupled with engagement in a commercial
-41-

transaction while abroad, implicates foreign commerce to a

constitutionally adequate degree"). This purchase, coupled with

the evidence concerning the amassed arsenal of firearms manufactured

out of state, suffices to satisfy RICO's interstate commerce nexus.

It follows that the tire shop evidence and the evidence of cellphone use are, in the circumstances of this case, merely frosting

on the cake.

C.

The final element in the RICO equation requires the

government to show that a defendant participated in the conduct of

the enterprise "through a pattern of racketeering activity." 18

U.S.C. § 1962(c). A pattern requires a minimum of two racketeering

acts. See id. § 1961(5). The word "through" implies a nexus

between these racketeering acts and the enterprise. That nexus

exists when a defendant is able to commit the predicate racketeering

acts either by means or as a result of his involvement with the

enterprise. See Marino, 277 F.3d at 27.

In this instance, the jury found that Nascimento had

committed two racketeering acts: (i) shooting DoCanto and (ii)

conspiring to kill Wendover members. He argues before us that the

evidence did not support a finding that a relationship existed

between the DoCanto shooting and his membership in Stonehurst. If

this argument prevails, it would thwart the government's effort to
-42-

prove a pattern of racketeering activity, and Nascimento's

conviction would topple.

Nascimento marshals a similar argument concerning his

VICAR conviction for assault in aid of racketeering. VICAR forbids,

inter alia, committing assault with a dangerous weapon "for the

purpose of gaining entrance to or maintaining or increasing position

in" a racketeering enterprise. Id. § 1959(a)(3). Thus, if the

evidence was inadequate to support a finding that he shot DoCanto

to maintain his position in Stonehurst, then the VICAR conviction

cannot stand.

In approaching these arguments, one fact sticks out like

a sore thumb. Despite the perfervid rhetoric in which the arguments

are couched, Nascimento does not challenge the sufficiency of the

government's proof that he actually shot DoCanto. Our task,

therefore, is to undertake de novo review in order to ascertain

whether, taking all reasonable inferences in the government's favor,

rational jurors could find beyond a reasonable doubt that the

necessary relationship existed between Nascimento's shooting of

DoCanto and his membership in Stonehurst. See Connolly, 341 F.3d

at 22.

The record reflects that on the night of November 29,

1998, DoCanto was standing near her car. Her boyfriend, Anildo

Rocha, was inside the vehicle. Nascimento opened fire, hitting

DoCanto in the left leg. Although there is no evidence that either
-43-

DoCanto or Rocha were Wendover members, Augusto Lopes testified that

Nascimento stated that he had fired the shots with the intention of

hitting the man in the car, whom he mistakenly believed to be

DoCanto's brother, Joaquim "Big Rocky" Martins. In light of this

testimony, Nascimento's claim of error boils down to a plaint that

the evidence was too thin to warrant a finding that Nascimento

understood his intended target — Big Rocky — to be affiliated with

Wendover.

This plaint rests heavily on Lopes's further testimony

that "Big Rocky . . . wasn't associated with nobody." Lopes added,

however, that Big Rocky "was actually involved in the problems."

The jury, of course, was entitled to discount the former statement

and to credit the latter. See, e.g., United States v. Alicea, 205

F.3d 480, 483 (1st Cir. 2000) (acknowledging jury's "prerogative to

credit some parts of a witness's testimony and disregard other

potentially contradictory portions"). 

Endeavoring to parry this thrust, Nascimento argues that

the allusion to "the problems" might be a reference to the fact that

Big Rocky was a witness to the Mendes murder committed by Nardo

Lopes, not a reference to any involvement with Wendover. That

interpretation is propped up by Rodrigues's testimony that he

understood Big Rocky to be one of the witnesses against Nardo Lopes.

But the government counters, with considerable force, that at a

different place in his testimony Augusto Lopes unequivocally named
Nascimento offers a laundry list of cases in which courts 8

have overturned convictions under RICO and VICAR based on the

prosecution's failure to establish the requisite nexus between the

predicate act and the enterprise. See, e.g., United States v.

Bruno, 383 F.3d 65, 85-86 (2d Cir. 2004); United States v.

Ferguson, 246 F.3d 129, 136 (2d Cir. 2001); United States v.

Polanco, 145 F.3d 536, 539-40 (2d Cir. 1998); United States v.

Thai, 29 F.3d 785, 818 (2d Cir. 1994). Without exception, these

cases — all of which either explore the degree of attenuation

permissible between a racketeering act and an enterprise or

highlight the utter absence of any evidence supporting a

relationship between the two — are inapposite.

-44-

Big Rocky as a Wendover collaborator. The government also notes

that the jury heard testimony from an admitted Wendover member,

Adiello DaRosa, that Big Rocky was associated with Wendover.

Sifting through conflicting testimony and determining

where the truth lies is the sort of work that falls squarely within

the jury's province. So it is here: the question is one of fact,

and the answer depends on what evidence the jurors deign to credit.

When a jury, which has seen and heard the witnesses, picks and

chooses among conflicting accounts, an appellate court should almost

always honor that choice. See United States v. Gobbi, 471 F.3d 302,

311 (1st Cir. 2006) (explaining that it is "ultimately the province

of the jury to assess the significance of any contradictions in the

evidence").

That effectively ends this aspect of the matter. Once the

jury had decided which account of Big Rocky's status should be

credited, the legal implications of that decision were clear.

Consequently, we reject Nascimento's claim of error.8
-45-

Nascimento argues in the alternative that, given the

contradictions in the testimony, the jury could not rationally have

found him guilty beyond a reasonable doubt. He cites United States

v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998), for the familiar

proposition that when the evidence, viewed in the light most

favorable to the prosecution, supports both a theory of guilt and

an equally likely theory of innocence, reasonable jurors must

perforce entertain a reasonable doubt. In this case, however, the

jury was under no compulsion to deem the contrasting theories of

guilt and innocence equally likely. The jury plausibly could have

credited the clear and unambiguous statement of DaRosa, himself a

Wendover stalwart and presumably a reliable source of information

about the gang's composition, that Big Rocky was a Wendover member

and was for that reason "part of the problems." 

Nascimento advances a further argument to the effect that

VICAR requires an even tighter relationship between a predicate

racketeering act and an enterprise because the act must be "for the

purpose of gaining entrance to or maintaining or increasing position

in an enterprise." 18 U.S.C. § 1959(a). This argument is

foreclosed by precedent: the VICAR provision is satisfied as long

as the criminal act can be said to have been expected of the

defendant by reason of his membership in the enterprise. United

States v. Tse, 135 F.3d 200, 206 (1st Cir. 1998). The totality of
-46-

the evidence in regard to Nascimento's shooting of DoCanto passes

that test.

To say more on this point would be superogatory. We

conclude, on whole-record review, that the evidence was sufficient

to sustain both an inference that Nascimento fired at DoCanto as

part of an effort to eliminate a member of the rival Wendover gang

and an inference that this conduct was expected of him by reason of

his membership in Stonehurst. Thus, there is an adequate

relationship, for both RICO and VICAR purposes, between the

challenged racketeering act and the enterprise.

III.

The jury convicted both Talbert and Nascimento on a trio

of charges: a substantive RICO offense, RICO conspiracy, and VICAR

conspiracy to commit murder. In each case, one of the racketeering

acts undergirding the substantive RICO charge was conspiracy to

commit murder. These two appellants now say that the interplay

between the substantive RICO charge and the conspiracy charges

offended the Double Jeopardy Clause. For the reasons that follow,

we reject their importunings.

One branch of the Double Jeopardy Clause forbids the

government from punishing a person twice for the same offense. See

U.S. Const., amend. V. Despite this proscription, the same conduct

sometimes can be punished under more than one statute. See, e.g.,

United States v. Morris, 99 F.3d 476, 477-78 (1st Cir. 1996). Such
-47-

multiple punishments are permissible if the underlying offenses are

distinct from one another, that is, if each offense "requires proof

of a fact that the other does not." Blockburger v. United States,

284 U.S. 299, 304 (1932).

Here, Talbert and Nascimento argue that because conspiracy

to commit murder served as a predicate act for their substantive

RICO convictions, the VICAR charge that they conspired to commit

murder lacked any element distinct from the substantive RICO charge.

Second, and relatedly, each of them argues that his conviction for

conspiracy to violate RICO was a lesser included offense within his

substantive RICO conviction and, thus, barred under the Blockburger

test. See Brown v. Ohio, 432 U.S. 161, 168 (1977) (discussing the

relationship between lesser included offenses and double jeopardy).

These arguments are not persuasive. In Marino, 277 F.3d

at 39, we held "that a substantive RICO violation and a RICO

conspiracy are not the same offense for double jeopardy purposes."

In the same opinion, we rejected the notion that a VICAR violation

is a lesser included offense of a substantive RICO violation. See

id.

The appellants' attempts to distinguish Marino are

unavailing. They focus on two facts: (i) that Marino involved a

greater number of racketeering acts and (ii) that here, unlike in

Marino, the purpose of the enterprise (killing Wendover members) was
-48-

identical to the object of the charged conspiracy. Neither of those

distinctions makes a dispositive difference. 

The Blockburger test "depends on the elements of the

crimes and not the similarity of the underlying facts." United

States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2007). Thus, in

resolving a double jeopardy challenge such as that advanced here,

a court should not bog itself down in the minutiae of the evidence

underlying the charges but, rather, should confine itself to the

statutory elements of the two offenses. Because a "RICO conspiracy

and a RICO violation do not necessarily require the participation

of the same people," Marino, 277 F.3d at 39 (emphasis in the

original), it is beside the point whether, in a particular instance,

the racketeering acts are few or many, or whether the RICO

conspirators and the RICO participants are identical. By the same

token, the fact that the purpose of the enterprise and the object

of the conspiracy happen to coincide is of no moment. See United

States v. Sessa, 125 F.3d 68, 72 (2d Cir. 1997). 

The appellants' fallback position rests on Wharton's Rule,

which carves out a modest exception to the general principle that

there is no bar to conviction for both a criminal conspiracy and a

substantive criminal offense committed within the course of the

conspiracy. See United States v. Previte, 648 F.2d 73, 76-77 (1st

Cir. 1981) (explicating the rule). Wharton's Rule is limited to

instances — adultery is a prime example — in which, as a statutory
-49-

matter, the completed offense necessarily involves conspiracy

between the participants. See United States v. Iannelli, 420 U.S.

770, 785 (1975). We rejected a Wharton's Rule challenge in an

earlier RICO case, see Marino, 277 F.3d at 39, and because the rule

operates at the statutory level, see Iannelli, 420 U.S. at 780, we

likewise reject the appellants' fact-bound attempt to resurrect what

amounts to the same argument.

That brings this chapter to a close. The short of it is

that these appeals do not implicate the Double Jeopardy Clause.

IV.

The last leg of our journey requires us to consider

Nascimento's assertion that the district court erred in refusing to

suppress evidence seized from his room during an arrest.

The facts are as follows. Nascimento was facing state

criminal charges arising out of the DoCanto shooting. He failed to

report as required and a state magistrate issued a default warrant.

On December 7, 1999, the police — armed with the arrest warrant but

no search warrant — arrived at Nascimento's home. Following a

consensual entry, they informed Nascimento (who was clad only in his

underwear) that he was to be arrested. Because Nascimento seemed

compliant, the officers did not handcuff him.

Two officers escorted Nascimento through the house to his

bedroom so that he could get dressed. Once there, the officers did

a quick sweep of the bed for weapons and sat Nascimento on it. One
-50-

of the officers proceeded to the clothes closet located eight to ten

feet from the bed. The officer performed a brief sweep of the

closet, noticed an unlocked cabinet on the top shelf, reached in,

and discovered a gun frame. At that point, Nascimento was

handcuffed.

Following his indictment in this case, Nascimento moved

to suppress the gun frame as the fruit of an illegal search. See

U.S. Const., amend. IV. The district court denied the motion.

Nascimento appeals from this ruling. 

It would be difficult to regard the introduction of the

gun frame as harmless: it was matched by a government ballistics

expert to shell casings found at one of the Stonehurst shootings.

The fact that Nascimento had possession of the gun frame also served

to corroborate Augusto Lopes, who testified that Nascimento had

disassembled a gun following a shooting, handed the barrel to Lopes

for disposal, and kept the frame. Given the force of this evidence,

we think it best to address Nascimento's claim on its merits.

At the outset, it seems useful to distinguish between

searches incident to arrest and protective sweeps. Officers

effecting an arrest are entitled to make a search incident to that

arrest. Chimel v. California, 395 U.S. 752, 763 (1969). The scope

of a search incident to an arrest is restricted to the area within

the immediate control of the arrestee, that is, "the area from
-51-

within which he might gain possession of a weapon or destructible

evidence." Id. 

Protective sweeps are conceptually distinct from searches

incident to arrest. They are not justified by the potential threat

posed by the arrestee but, rather, by the potential threat posed by

unseen third parties who may be lurking on the premises. See

Maryland v. Buie, 494 U.S. 325, 336 (1990). Consequently, a

protective sweep is limited to a "cursory visual inspection of those

places where a person might be hiding." Id. at 327; see United

States v. Martins, 413 F.3d 139, 149-51 (1st Cir. 2005) (discussing

protective sweep doctrine). 

In this case, the district court cited both Chimel and

Buie. We confine our analysis more narrowly: because the cabinet

searched was too small to accommodate a person, we concentrate on

whether the search passes muster under Chimel.

There is some disarray in the case law as to standard of

review that pertains to a determination of the permissible scope of

a search incident to arrest. Some courts have used a clearly

erroneous standard. See, e.g., United States v. Morales, 923 F.2d

621, 626-27 (8th Cir. 1991); United States v. Bennett, 908 F.2d 189,

193-94 (7th Cir. 1990). Others have undertaken de novo review.

See, e.g., United States v. Abdul-Saboor, 85 F.3d 664, 667 (D.C.

Cir. 1996); United States v. Johnson, 18 F.3d 293, 294 (5th Cir.

1994) (opinion on rehearing). In our judgment, a bifurcated
-52-

standard of review is appropriate. See United States v. Espinoza,

___ F.3d ___, ___ (1st Cir. 2007) [No. 06-2065, slip op. at 5-7]

(discussing general approach to appellate review of district court

rulings on suppression motions); cf. United States v. Coker, 433

F.3d 39, 41 (1st Cir. 2005) (discussing the bifurcated standard of

review applicable to suppression rulings in the context of the Sixth

Amendment right to counsel). Under that approach, we review the

district court's factual findings for clear error but review de novo

its ultimate constitutional conclusion.

Before moving to the heart of Nascimento's argument, we

pause to brush aside a potential complication. The police

originally encountered Nascimento in the front of the apartment. At

that time, the cabinet was unquestionably beyond his immediate

control. Under the circumstances, however, it was not inappropriate

for the police to escort Nascimento to his bedroom in order that he

might get dressed.

When police encounter and arrest a partially clothed

individual in his home, the need to dress him may constitute an

exigency justifying the officers in entering another room in order

to obtain needed clothing. See United States v. Gwinn, 219 F.3d

326, 333 (4th Cir. 2000). Generalizations are hazardous because one

can imagine infinitely variable fact patterns. It suffices to say

that both human dignity and the New England climate counseled here

in favor of a more complete wardrobe. In addition, the district
-53-

court supportably found that the police neither manipulated the

situation nor used Nascimento's dishabille as a pretext to carry out

an otherwise impermissible search. Accordingly, the conduct of the

police in deciding to dress the suspect falls within the reasonable

latitude afforded arresting officers in coping with exigent

circumstances. See United States v. Cook, 277 F.3d 82, 86 (1st Cir.

2002) (explaining that "common sense and practical considerations

must guide judgments about the reasonableness of searches and

seizures").

This brings us to the search itself. The evidence at the

suppression hearing indicated that, as a matter of policy, Boston

police officers in similar situations allowed arrestees to select

the clothes that they wished to wear. The arrestee, however,

typically would not be given direct access to the closet. Thus, the

question reduces to whether a cabinet eight to ten feet away from an

unrestrained suspect can be said to be within the suspect's

immediate control. Emphasizing that there were two officers between

him and the closet, Nascimento argues that we should answer this

question in the negative. To buttress his argument, he calls our

attention to United States v. Johnson, 16 F.3d 69 (5th Cir. 1994),

modified on rehearing, 18 F.3d 293, in which the Fifth Circuit found

that a briefcase some eight feet away from an unrestrained suspect

was not under his immediate control. See id. at 70-72. In so
This result is consistent with our earlier implication that, 9

in a small space such as a 10-foot by 10-foot room, even a

handcuffed suspect has a "grab area" covering most of the room.

See United States v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998).

-54-

holding, the court stressed that four officers were present in the

room. Id. at 71.

In our estimation, Johnson is of little help to

Nascimento. There, unlike in the case at hand, the officers "never

felt threatened" and never "believed that Johnson was about to

destroy evidence." Id. at 72. Despite that mindset, they engaged

in "precisely the type of generalized, warrantless search prohibited

by Chimel." Id.

This case is a horse of a different hue. The officers

were arresting a person whom they knew to have been charged with a

crime of violence. Law enforcement officers who embark on perilous

duties are not expected to ignore the need for commonsense

precautions. And here, in sharp contradistinction to Johnson, the

officers targeted their search to the closet, which was about to

become the locus of activity. The district court found as a fact

that the closet was readily accessible to Nascimento. That finding

was not clearly erroneous. 

That is game, set, and match. Given the finding of

accessibility, the closet (and, thus, the cabinet) was within

Nascimento's immediate control. Accordingly, we uphold the district 9

court's ultimate conclusion that the scope of the search was within
-55-

permissible limits. See Abdul-Saboor, 85 F.3d at 671 (holding an

area that is "conceivably accessible" to arrestee to be within his

immediate control). On that basis, the district court appropriately

denied the motion to suppress.

V.

We need go no further. Concluding, as we do, the

appellants' arguments lack force, we affirm their convictions. We

add only that while this case may venture near the outer edge of

conduct encompassed by the RICO statute, Stonehurst's activities do

not cross that line.

Affirmed.

— Concurring Opinion Follows — 
Jones v. United States, 529 U.S. 848 (2000), is also cited 10

along with the Lopez-Morrison duo, but Jones was a statutory

interpretation case and did not directly engage the scope of

Congress's commerce power.

-56-

BOUDIN, Chief Judge, concurring. Although several

important issues are raised on these appeals, the one of greatest

continuing importance concerns RICO's commerce requirement, see 18

U.S.C. § 1962(c) (2000), and the constitutional challenge by the

defendants based on United States v. Lopez, 514 U.S. 549 (1995), and

United States v. Morrison, 529 U.S. 598 (2000)--the duo itself

having been distinguished more recently by Gonzales v. Raich, 545

U.S. 1 (2005).10

RICO reaches an enterprise that "affect[s]" interstate

commerce, 18 U.S.C. § 1962(c), a term of art usually signifying

Congress's intent to regulate to the limit of its Commerce Clause

powers. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115

(2001). In our case, the evidence showed the gang's regular use of

guns that had moved in interstate commerce, as well as one trip by

a gang member across state lines to procure such weapons. The guns

were not peripheral; they related directly and centrally to the

gang's activities. This nexus is enough to satisfy the Commerce

Clause. That the acquisition of such weaponry swells, rather than

impedes, interstate commerce long ago ceased to matter. United

States v. Darby, 312 U.S. 100, 113 (1941).
-57-

The commerce link in our case is at least as strong and

arguably stronger than that of a prior felon who acquires, in some

local "street" transaction, a gun that happened to be made in

another state. The act of a felon receiving or possessing such a

gun (or, indeed, even a single bullet) has for many years been a

federal criminal offense, see 18 U.S.C. § 922(g)(1), based on the

prior movement of the gun in interstate commerce. Scarborough v.

United States, 431 U.S. 563 (1977). Here, multiple weapons and

their use as part of the criminal enterprise were amply proved.

Given Scarborough, our own case appears a fortiori. 

Some courts in upholding the felon-in-possession statute

assert that it regulates an "instrumentality" of commerce, namely

the gun. E.g., United States v. Dorris, 236 F.3d 582, 586 (10th

Cir. 2000). But in truth the statute criminalizes conduct--

possession or receipt of a gun by a felon--and the gun's provenance

provides a sufficient nexus to commerce to permit federal regulation

of that conduct. The offending conduct here is the use of guns to

kill people as part of a criminal enterprise; and the interstate

origins of the guns permit Congress to regulate that conduct. If

Congress can regulate the mere possession of a gun because the gun

at one time traveled in interstate commerce, surely it can also

regulate an enterprise that uses such guns to kill. 

There are other analogous statutes. The federal carjacking statute, 18 U.S.C. § 2119 (2000), makes murder and lesser
-58-

violence into federal crimes simply because the vehicle once moved

in interstate commerce, and it has repeatedly been upheld. E.g.,

United States v. Cobb, 144 F.3d 319, 320-21 (4th Cir. 1998). And

courts regularly uphold wire and mail fraud convictions because a

single call or mailing, playing an incidental role in the scheme,

creates a link to an instrumentality of interstate commerce, e.g.,

Schmuck v. United States, 489 U.S. 705, 710-715 (1989); Pereira v.

United States, 347 U.S. 1, 8 (1954). In fact, the call or mailing

may itself be intrastate so the link is the use of facilities that

also serve interstate customers, e.g., United States v. Gil, 297

F.3d 93, 100 (2d Cir. 2002). 

Lopez and Morrison concerned statutes that did not require

any jury finding that the conduct in the particular case used

facilities of interstate commerce or affected such commerce. Lopez,

514 U.S. at 561; Morrison, 529 U.S. at 613. The legality of each

statute in these two cases depended on imputing (in Lopez) or

upholding (in Morrison) a generalized Congressional determination

that a class of primarily local activities taken together had some

cumulative effect on commerce, even if individual effects were too

small to count. Lopez, 514 U.S. at 563; Morrison, 529 U.S. at 615.

The cumulative impact theory had been well established in

commerce clause cases since Wickard v. Filburn, 317 U.S. 111 (1942).

In Lopez and Morrison, the Supreme Court restricted the theory to

cases of economic activity. Lopez, 514 U.S. at 561; Morrison, 529
-59-

U.S. at 611. But the restriction, which we must assume continues to

be good law, has nothing to do with a case where the statute

requires and the evidence shows that the defendants themselves had

the requisite effect on commerce--here by the purchase and

possession of weaponry.

Raich is yet a different kind of problem. Marijuana

cultivation taken as a whole is a commercial activity affecting

interstate commerce; but the Supreme Court upheld the criminal ban

even where marijuana is grown for personal non-economic use and

consumed in-state. Its rationale was that Congress could reach

cases of this kind because, given the practical difficulties of

distinguishing, a ban on such intrastate, noncommercial production

was an "essential part of the larger regulatory scheme." Raich, 545

U.S. at 27. 

The present case is easier for the government than was

Raich. To repeat, the RICO statute requires that the particular

enterprise itself affect interstate commerce and a jury, supported

by evidence, determined that the enterprise in this case did affect

such commerce. The guns traveled in interstate commerce; so too did

one of the enterprise's gun purchasers. This is sufficient to pass

constitutional muster. Cf. Scarborough, 431 U.S. 563. However much

Raich may or may not affect Lopez and Morrison, the convictions in

this case satisfy established precedent.
-60-

Congress' use of the Commerce Clause to reach local crimes

or criminals plausibly linked in the individual case to interstate

commerce may or may not be good federalism policy but its legality

is too well established to be revisited by the lower federal courts.

Conceivably, the link in a particular case may be too slight or

faint; every murder is of someone whose next meal might otherwise

have come from a large supermarket chain purchasing its products

interstate. See Lopez, 514 U.S. at 564. But the arsenal of guns in

this case is not a slight or faint connection and is sufficient to

sustain federal jurisdiction under existing Supreme Court precedent.